DECIDED JULY 11, 1952. REHEARING DENIED JULY 21, 1952.
Trover; from Savannah City Court — Judge Heery. February 28, 1952.
Harry Silverman, Emanuel Kronstadt, for plaintiff in error.
Lewis, Wylly Javetz, contra.
1. The plaintiff here, upon learning that his wife had without authority entered into a contract with the defendant, by the terms of which she exchanged the plaintiff's automobile to the defendant automobile dealer for a new one and undertook to obligate him to pay the difference between the values of the two automobiles, kept the new automobile thus acquired by his wife in his behalf, and used the same for a period of approximately six weeks, during which time he made a trip to Baltimore, Maryland, and return, and continued thereafter to drive the automobile an additional thousand or more miles around the City of Savannah. This conduct during this period of time, as a matter of law, constituted a ratification of the contract thus made by his wife in his behalf.
2. The plaintiff, having ratified the contract, could not thereafter disaffirm it by tendering the property back. In any event, the tender here was not an unconditional tender as required by law.
DECIDED JULY 11, 1952 — REHEARING DENIED JULY 21, 1952.
Frederick W. Krieger Jr. brought trover in the City Court of Savannah for the recovery of a 1947 Chevrolet automobile of the value of $1500, against Southern Motors of Savannah Inc. The defendant answered, setting up as a defense: that the plaintiff's wife, acting within the scope of her authority as his agent, had traded the Chevrolet to the defendant on April 23, 1951, as part payment on a new Nash automobile purchased in her name and that of the plaintiff jointly; that on September 4, 1951, he and his wife made a payment on the Nash in the sum of $130.12; that on August 31 he took over the driving and management of the car and used it without objection until October 9, 1951, on which date his attorney wrote the defendant that he was rescinding the sale and offered to return the Nash upon delivery of the Chevrolet to him. The case proceeded to trial on these issues. The evidence demanded a finding that, at the time plaintiff's wife traded the automobiles, he was serving in the armed forces and was not present. The jury was authorized to find from the plaintiff's evidence: that he did not authorize his wife to make the trade and knew nothing about it until his return home at about 2:30 on the morning of September 1, 1951; that at 7:30 that same morning he took the Nash and drove to the defendant's place of business to find the details of the trade, as his wife was unable to tell him the amount contracted for the Nash or received for the Chevrolet; that he spent the entire day there asking for the president of the company, who his wife informed him had handled the transaction, but was unable to locate him; that while there he asked for repairs to be made to the Nash, which, however, were not in fact made; that during the course of the day his wife came in and made a payment on the Nash, but that the plaintiff did not know of this fact; that the plaintiff's father was ill in Baltimore and it was necessary for him to go there immediately; that he took his wife and drove, the Nash, remaining there for approximately two weeks; that he returned to Savannah on September 18, 1951; that he went again to Southern Motors and, still being unable to contact the president, spoke with a salesman who gave him the details of the trade, showing a trade-in price of $866 for the Chevrolet; that the plaintiff immediately went to the Office of Price Stabilization to complain, and was told that the maximum ceiling price was $1095, but that prices varied according to the condition of the automobile; that he then went to his attorney; that because of divorce proceedings which had in the meantime been instituted by the plaintiff against his wife the attorney did not communicate with the defendant until October 9; that on that date he wrote a letter informing the defendant that "he is rescinding and renouncing these actions on the part of his wife, and at this time is calling on you to deliver to him his Chevrolet automobile [and] now stands ready and hereby offers to return to you your Nash 4 door Sedan automobile upon delivery of the Chevrolet to him." During this time the plaintiff continued to drive the Nash. The letter was not answered, and on October 13 the trover petition was filed. Some time after that date but prior to the trial of the case, the plaintiff's divorce case was tried and the Nash automobile was awarded to the plaintiff.
The plaintiff testified that on October 20 he stored the automobile in a garage where it was accessible to either the defendant or the finance company. He also testified that he stood ready to surrender the Nash only if the Chevrolet was returned to him.
The jury returned a money verdict of $1100 in favor of the plaintiff. The defendant filed a motion for new trial on the general grounds, which was later amended by adding six special grounds, and the overruling of this motion is assigned as error.
1. Where an agent without authority enters into a contract on behalf of a principal, the principal, upon discovery of the circumstances, has a choice either to ratify or disaffirm the contract made in his behalf, but he must act promptly and within a reasonable time, and, if he wishes to rescind, must tender back the benefits received under such contract. Once the choice has been made to ratify, the contract may no longer be disaffirmed. Code, §§ 4-302, 4-303; Bacon v. Danenberg Co., 24 Ga. App. 540, 541 (5) ( 101 S.E. 699); Lancaster v. Neal, 41 Ga. App. 721 (5) ( 154 S.E. 386); Jacksonville Paper Co. v. Owen, 60 Ga. App. 742 ( 5 S.E.2d 103).
Retaining possession of and using for any considerable period of time the property so received constitutes a ratification of the unauthorized contract. Code § 4-302 provides as follows: "The principal shall be bound by all the acts of his agent within the scope of his authority; if the agent shall exceed his authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none." In Mechem, Outlines of Agency (2d ed.), page 53, § 90, the following is stated: "When a person learns that another has assumed, without authority, to do some act for him as his agent, he has the option to repudiate or ratify the act, but he must do one thing or the other. He has a reasonable time within which to decide, but if, with knowledge of the facts, he fails to repudiate the act within a reasonable time, he will be deemed to have affirmed it." See also Haney School Furniture Co. v. Hightower Baptist Institute, 113 Ga. 289 (2) ( 38 S.E. 761); Cooper Auto Supply Co. v. Oxweld Acetylene Co., 29 Ga. App. 413 (2) ( 116 S.E. 30). In the present case the plaintiff, when he returned home on August 31, 1951, learned immediately that his wife had sold his Chevrolet automobile and taken in exchange a new Nash, which act the jury was authorized to find was completely unauthorized by him. Had the plaintiff repudiated the transaction at that time and demanded the return of his Chevrolet, there is no doubt but that he would have been legally within his rights in so doing. However, the plaintiff instead took personal possession of the Nash automobile; he drove it to the defendant's place of business the next morning and asked that certain repairs be made on it; he then took the car and drove to Baltimore, Maryland, and stayed there approximately two weeks; he returned to Savannah on September 18, 1951, and between that time and October 9, when the defendant was first notified that the plaintiff wished to repudiate the transaction on the ground that his wife was unauthorized to enter into the contract for him, he continued to have exclusive possession of the property and drove it an additional thousand or more miles. Although the plaintiff may not have known the details of the exchange until after September 18, he did know, on August 31, that his car had been traded for the Nash, and in accepting the fruits of the contract and using the new automobile for his exclusive benefit for a period of almost six weeks of intensive driving, during which time he failed to notify the defendant of any intention to disaffirm the contract on his part, such acts, in our opinion, constituted a ratification of the unauthorized act of the agent so as to render the plaintiff liable for the payment of the purchase money. Cooper Auto Supply Co. v. Oxweld Acetylene Co., supra. It follows, therefore, that the trial court erred in failing to give the requested charges set forth in special grounds 4 and 5 of the amended motion for new trial, to the effect that such acts on the part of the plaintiff would as a matter of law constitute a ratification of the contract.
2. Since the plaintiff by his conduct ratified the contract as set forth in division one hereof, he could not thereafter disaffirm it by tendering back the benefits which he received under the contract. Code, § 4-303. The tender was in any event ineffective, however, in that it was conditioned upon the delivery to the plaintiff of the Chevrolet automobile (which the defendant did not have in its possession). A tender must be absolute and, if not so, it fails, even though the only condition accompanying it is such as to impose the performance of a duty actually owing by one to whom the purported tender is made. Code, § 20-1105; Health v. Miller, 205 Ga. 690 (1) ( 54 S.E.2d 432); Henderson v. Willis, 160 Ga. 638 (3), 643 ( 128 S.E. 807); Holland v. Peerless Furniture Co., 60 Ga. App. 149 ( 3 S.E.2d, 138).
There is nothing to the contrary in Barnett v. Speir, 93 Ga. 762 ( 21 S.E. 168). In that case the plaintiff tendered back his horse and also made demand upon the defendant for the horse in the latter's possession, and it was held that, where both the tender and demand were refused, the plaintiff was not precluded from bringing a trover action because he thereafter kept in his possession the horse which had been traded to him. It does not appear that the tender was made conditional upon fulfillment of the demand.
The charge complained of in special grounds 7, 8, and 9, to the effect that a conditional tender is not a repudiation of the contract, was without error.
The trial court erred, for the reasons hereinbefore set forth, in overruling the motion for a new trial.
Judgment reversed. Gardner, P.J., and Carlisle, J., concur.